Glasrock Home Health Care v. Leiva, 90-2028

• Decision Date: 11 April 1991
• Docket Number: No. 90-2028,90-2028
• Citation: 16 Fla. L. Weekly 988,578 So.2d 776
• Parties: GLASROCK HOME HEALTH CARE and Liberty Mutual Insurance Company, Appellants, v. Enrique LEIVA, Appellee. 578 So.2d 776, 16 Fla. L. Week. 988
• Court: Florida District Court of Appeals

Page 776

578 So.2d 776

GLASROCK HOME HEALTH CARE and Liberty Mutual Insurance Company, Appellants, v. Enrique LEIVA, Appellee.

No. 90-2028.

578 So.2d 776, 16 Fla. L. Week. 988

District Court of Appeal of Florida First District.

April 11, 1991.

H. George Kagan of Miller, Kagan & Chait, P.A., Deerfield Beach, for appellants.

Jeffrey S. Beslow of Ira J. Druckman, P.A., Miami, for appellee.

SMITH, Judge.

In this appeal of an order awarding workers' compensation, the employer and carrier (E/C) argue that the judge of compensation claims erred in finding the claimant suffered an occupational disease. We agree and reverse.

The appellee, claimant below, worked as a customer service representative for Glasrock Home Health Care, which supplies medical equipment to home-bound patients. Routinely, although not on a daily basis, the claimant would participate in the unloading and cleansing of used equipment stored on Glasrock trucks which had picked up the equipment the evening before. On May 5, 1988, the claimant left work early because of illness. By the next morning, he was severely ill and had been hospitalized. He was diagnosed as having fulminant meningococcemia, a virulent and often fatal form of meningitis, and was hospitalized for several months. The condition resulted in substantial vascular damage to the claimant's legs, and sadly, a bilateral amputation at the knee was required.

The claimant filed for various workers' compensation benefits which were controverted by the E/C. The matter proceeded to a hearing, at which the claimant submitted the testimony of Dr. Nathan Jacobson, M.D., claimant's treating physician. Dr. Jacobson testified that he believed claimant was infected by the bacteria causing the disease, neisseria meningitis, while cleaning the used medical equipment. More specifically, Jacobson thought the claimant was infected by aerosolization of fluid containing neisseria. Dr. Jacobson testified it was his belief that fluid, possibly sputum or saliva, was made airborne during the cleaning of suction bottles used in connection with respiratory machines. Neither Jacobson, nor anyone else for that matter, testified that any of Glasrock's customers suffered from a neisseria infection shortly before the claimant contracted the disease. ¹

Dr. Jacobson's testimony concerning the nature of the neisseria meningitis was consistent with the testimony of appellants' experts, Dr. Richard Greenman, M.D., and Dr. Thomas Hoffman, M.D., both of whom are also specialists in the treatment of infectious diseases. The bacterium cannot remain viable outside a human host, and is a rather Janus-faced organism, for while it can cause severe or fatal illness in some, most people are immune to its effects.

Appellants' experts rejected Dr. Jacobson's theory of infection by aerosolization of contaminated droplets, citing, among other things, the nature of the bacteria. Given the fact that at any given time numerous people are asymptomatic carriers of the bacteria, the E/C's experts opined that claimant was likely infected during the course of daily living.

Although claimant's argument before this court never specifically uses the term, it is clear that he is relying on a logical cause theory. Jacobson never performed tests on the equipment used by claimant nor was he aware that any testing had been done. He believed, but did not know as a fact, that the uncorking of suction bottles would aerosolize the fluids stored in the bottles. He did not testify as to any known case where the disease was transmitted through a similar aerosolization process. Dr. Jacobson testified:

I don't have a fact as to how he acquired his infection, but knowing what he does for a living, I think there's a risk there ... I think that my theory about aerosolization of respiratory secretion is my bias, but I believe it. I'm not making it up. I think in order to support that, you might get an expert in physics to talk to you about microdroplets and how much they weigh and what force it takes to aerosolize an air droplet that's eight microns in diameter, and could be stuck into the nose, and from that point, I could answer the question. I could tell you that once it gets there, from literature, documents, people could either be colonized or get infected, but can this moist secretion aerosolize a droplet, it's my bias that it can. You may need a physics expert to give you better information.

In Lake v. Irwin Yacht & Marine Corp., 398 So.2d 902, 904 (Fla. 1st DCA 1981), the following test was established for recovery for an occupational disease:

(1) the disease must be actually caused by employment conditions that are characteristic of and peculiar to a particular occupation;

(2) the disease must be actually contracted during employment in the particular occupation;

(3) the occupation must present a particular hazard of the disease occurring so as to distinguish that occupation from usual occupations, or the incidence of the disease must be higher in the occupation than in usual occupations; and

(4) if the disease is an ordinary disease of life, the incidence of such disease must be substantially higher in the particular occupation than in the general public.

See also, Smith v. Crane Cams, Inc., 418 So.2d 1266 (Fla.1982).

With respect to the first prong, the evidence of causation must be shown by something more than a logical relationship. Harris v. Joseph's of Greater Miami, Inc., 122 So.2d 561 (Fla.1960); Metric Constructors, Inc. v. Chiles, 429 So.2d 1292 (Fla. 1st DCA 1983). Further, the causal relationship must be shown by clear evidence rather than speculation and conjecture. Wiley v. Southeast Erectors, Inc., 573 So.2d 946 (Fla. 1st DCA 1991).

In this case, there is no question that the period in which the disease was contracted coincided with claimant's employment at Glasrock. However, the claimant's theory of causation is undermined by the fact that Dr. Jacobson's assumption regarding infection by aerosolization was based upon facts and inferences not supported by evidence of record. Arkin Construction Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1975). There was a total absence of evidence of the claimant's actual exposure to the substance causing the disease, the neisseria bacteria, while he was working within the scope and course of employment. Given this deficiency of proof, the claimant failed to show that the fulminant meningococcemia was actually caused by employment conditions that are characteristic of and peculiar to his occupation. See, Sec. 440.151, F.S. (1989); Lake v. Irwin Yacht, supra.

The claimant also failed to prove the third prong of the Lake v. Irwin Yacht, supra, test, that is, that his occupation presented a particular hazard of the disease occurring so as to distinguish that occupation from usual occupations, or that the incidence of the disease was higher in his occupation than in usual occupations. 398 So.2d at 904.

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